Patterico's Pontifications

5/21/2008

Ninth Circuit Issues Deceptively Important Opinion on “Don’t Ask, Don’t Tell”

Filed under: Constitutional Law,Court Decisions,General,Judiciary,Law — Patterico @ 10:36 pm

A panel of the Ninth Circuit today issued a decision regarding the “Don’t Ask, Don’t Tell” policy. The decision addressed an issue that sounds arcane to non-lawyers, but which is, in reality, critical: what is the level of “scrutiny” the courts will apply in examining the policy?

The reason this is important is because the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

This is why it’s so important to decide what level of “scrutiny” a court will give to a particular government action. When the court declares the government’s policy is subject only to “rational basis” scrutiny, the policy is likely to be upheld. When the policy is subjected to “strict scrutiny,” it is likely to be stricken down.

Rational basis = Government action/policy legal
Strict Scrutiny = Government action/policy illegal

Here, the Ninth Circuit looks at the Lawrence v. Texas case, which struck down a law against homosexual sodomy, and tries to decide what level of scrutiny the Supreme Court was applying in that case.

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny — essentially a form a “intermediate scrutiny” — applies to the Don’t Ask, Don’t Tell policy.

You can read the decision here. It is the product of three Democrat-appointed judges: Ronald Gould, a Clinton appointee and the author of the opinion; Susan Graber, a Clinton appointee and the second judge in the majority; and William Canby, a Carter appointee who complained that the other two judges didn’t go far enough, and should have applied “strict scrutiny.”

(I can’t wait to read the L.A. Times article to see whether it reports that all three judges are Democrat appointees.)

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope — but don’t let its seeming modesty fool you. It’s a big step.

This is a big decision. It remains to be seen whether it will be recognized as such.

P.S. For what it’s worth, I think “Don’t Ask, Don’t Tell” is a ridiculous policy that should be overturned yesterday. But, like gay marriage, I don’t want to see that done through judicial sleight of hand. I want society to accept both policies. I think we’re on the way. In my view, the courts are only interfering with what is otherwise the natural evolution of people’s opinions, as they are increasingly exposed to gays — and learn, to their surprise, that they’re just people like the rest of us.

54 Responses to “Ninth Circuit Issues Deceptively Important Opinion on “Don’t Ask, Don’t Tell””

  1. Frankly, the Lawrence v. Texas decision was simply supreme court malpractice in its most tangible form. The decision was incoherent, like so many Kennedy decisions.

    SPQR (26be8b)

  2. DADT is a stupid policy, and costs the services many good people, some because they don’t join, and others because they’re kicked out.

    i had plenty of reasons to dislike Clinton, but one of his biggest failures, in my eyes, was not overturning this stupidity the same way Truman got rid of Military segregation…..

    JMHO

    redc1c4 (5c059d)

  3. I haven’t read this decision yet, and may not have time to until next week.

    Can anyone who has read it offer an opinion as to whether it is a reasonable reading of Lawrence?

    aphrael (db0b5a)

  4. Um…as someone who had to share a room with an open lesbian/bisexual who several times made advancements that would’ve been sexual harassment if they’d come from a male…for the love of all that’s holy, DON’T get rid of DADT!

    Unless you replace it with either 1) no-body has to share a room with ANYONE (not very practical) or 2) no homosexuals at all.

    Foxfier (15ac79)

  5. I think it’s pretty obvious that Lawrence was not subject to a rational-basis test, or “stopping the spread of AIDS” would have been sufficient grounds to uphold the idiotic law. Near as I can tell, anything not involving flying saucers suffices. See the Camarillo no-outdoor-smoking law for a fine example of a rational basis figleaf.

    Yet if Lawrence had declared (or even suggested) strict scrutiny when regulating adult sexual relations, or had suggested the kind of thing that the CA Supreme’s did the other day, it would have been front-page news. They didn’t need to, though as anything other that “rational basis” meant the Texas law was a goner.

    So, since they did neither of those, one would suppose it was some kind of intermediate test.

    God only knows what that is, though. Probably whatever they need to do what they want and no more.

    Kevin Murphy (0b2493)

  6. I don’t know how much of a *right* there is to engage in adult consensual sex while in the United States Armed Forces. If there is one, it’s probably way down lower on the rights hierarchy than the right not to be downrange from enemy bullets.

    I do think that there is a right of every able-bodied citizen to take up arms on behalf of his country which is balanced against the very important governmental interest of an effective, well-regulated military. One of the best arguments against the ban on gays in the military is that the military has always had the power to tell soldiers what to do with their *rifles* and what to do with their *guns*. This kind of decision just gives more ammunition to the pro-ban side.

    nk (d7f5f5)

  7. Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce.

    Metaphor Award of the Day.

    capitano (03e5ec)

  8. Any rational scrutiny of the Ninth “Circus” would have to conclude that they all ought to be Impeached and removed from the bench. This is the most overturned court in the country.

    PCD (5c49b0)

  9. The link to the decision appears to be down.

    I do however disagree with your position on DADT, but not as much as a legal question as from the perspective of a guy who served as an Infantryman. Unfortunately from there my position becomes somewhat unworkable. For instance, I would support a “Sacred band of Thebes” sort of thing, but seperate but equal never works. The problem is the disruption in the unit itself if there are homosexuals, or even if a guy or gal is thought to be one. I served with one team leader that everyone was certain was gay, and guys blatently disrespected him. Having had to share a sleeping bag on occasion in the field, the last thing you want to be worrying about is the sexual proclivities of your battle buddy.

    And yes, I know that position is unfair, but in the field, “fairness” wasn’t exactly my top priority.

    Thus Spake Ortner (b0c4af)

  10. The problem is the disruption in the unit itself if there are homosexuals, or even if a guy or gal is thought to be one.

    I believe the same thing was claimed (lack of unit cohesion, destruction of the service) was claimed back before they let them durn darkies service in the same unit as whites.

    I might be mistaken, but they seem to be doing just fine.

    For my part, I don’t care about the sexual proclivities of the guy next to me. If he’s willing to die for me, I’m willing to die for him.

    That’s really all I care about.

    Scott Jacobs (fa5e57)

  11. Can anyone who has read it offer an opinion as to whether it is a reasonable reading of Lawrence?

    I read it. The problem is more with Lawrence than this decision. You can take from it what you like. The Ninth Circuit took the parts that made it seem like more than rational basis review.

    Patterico (cb443b)

  12. Those who dismiss the concerns about gays disrupting military unit cohesion have obviously never served. There is no privacy and the effect of sexual tension, with gays or opposite sex, in combat is always negative. Israel stopped using women in combat for that reason. That’s not to say that women, like that MP sergeant who was awarded the silver star in Iraq, weren’t heros. The problem comes from the living arrangements. Sure as hell, as soon as the ban was lifted, someone would sue for sexual harassment and the military would have even more lawyers poring through the ranks than is the case now.

    Mike K (86bddb)

  13. Why does the argument against gays in the military always come down to sharing foxholes, sleeping quarters or sleeping bags? There are plenty of positions in the military that don’t require the up-close-and-personal relationships of an infantry unit. Arbitrarily reducing the pool of people who can serve as translators, medical service providers, electronics technicians, maintenance workers, etc., doesn’t seem particularly wise.

    Diffus (cb9f4f)

  14. Diffus, so your solution is what? To create segregated units?

    The reality is that there are no front lines v. rear echelon any longer. A female friend of mine who spent a year in Iraq as a medic was involved in so much combat, firing her rifle, that she’s been working to get her CIB awarded.

    SPQR (26be8b)

  15. Israel stopped using women in combat for that reason.

    Correct me if I’m wrong, but doesn’t Israel allow gays in its military?

    Patterico (190dd7)

  16. Patterico – Yup. That is one of the reasons that Ahmandinnerjacket hates the Jooooooooos so much.

    JD (75f5c3)

  17. Patterico,

    Yes, it does but I believe that it also allows them to claim an *exemption* from the universal draft and perform non-military national service in place of military service. (Which is not in any way inconsistent with our volunteer armed forces.) Many choose to join the military.

    nk (d7f5f5)

  18. P.S. I believe that it is an amelioration of the original policy of “Don’t tell us, we don’t care” and possibly due in part to the ultra-Orthodox who refused to spill blood. BTW, are those hemophobes, JD?

    nk (d7f5f5)

  19. Homophobes. How could I forget them, nk? And the polarbearophobes.

    JD (75f5c3)

  20. Hemophobes, JD, hemophobes. As in hemophilia.

    nk (d7f5f5)

  21. Hemophobes too. And, shemophobes.
    And, Coulrophobia.
    And, Achondroplasiaphobia.
    But not Kyotophobia.

    JD (75f5c3)

  22. The Thunder Run has linked to this post in the – Web Reconnaissance for 05/22/2008 A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

    David M (447675)

  23. Patterico: thank you for the quick summary.

    aphrael (db0b5a)

  24. From my perspective, the Ninth really demonstrates its’ arrogance by telling SCOTUS that they didn’t do it right in Lawrence. I’m sure that this will impress on the Justices in DC, how they need to do a better job so that the Ninth will not have to resort to such public rebukes.
    And, BTW, wasn’t DADT a policy created by Congress? Does the Judiciary have the power to tell Congress how to raise and organize armies?
    Just asking.

    Another Drew (8018ee)

  25. wasn’t DADT a policy created by Congress?

    Nope. Policy put in place by Bill Clinton.

    Scott Jacobs (fa5e57)

  26. it’s disingenuous to say that you support something, but you oppose the achievement of this something through “judicial sleight of hand”. anti-miscegenation laws were voided by the u.s. supreme court in loving v. virginia. from your statement, may i conclude that you oppose interracial marriages to this day until the people have the opportunity to vote on them?

    assistant devil's advocate (15aea1)

  27. No, ADA, it is not disingenuous at all. Process has importance. And your attempts to label people as racist with these implications is outrageous.

    SPQR (26be8b)

  28. Scott, didn’t Congress re-write the rules in reaction to BC, in one of his first acts in ’93, to OK gays in the military? Check it out.

    Another Drew (8018ee)

  29. Scott/Another Drew, I think that DADT was enacted as legislation after Clinton floated an executive order in the first weeks of his administration. It was a classic example of the ineptness of the Clinton administration’s first couple of years.

    SPQR (26be8b)

  30. Ok. As a non-lawyer, let me make sure I understand the significance of this ruling:

    The panel of the Ninth Circuit is looking to Lawrence v. Texas for precedent in re: DADT (insofar as the behavior addressed in Lawrence v. Texas is more or less the primary behavior with which DADT is [un]concerned).

    Should the panel wade through Justice Kennedy’s poorly-reasoned (or at least poorly-illuminated) opinion and find that the Supreme Court applied strict scrutiny in Lawrence v. Texas, there would be at least a modicum of jurisprudence supporting similar strict scutiny in re: DADT.

    In such a case, DADT is likely to be overturned.

    Is that more or less the gist of things?

    Leviticus (fa0894)

  31. process has importance.

    ok spqr, i’ll bite. what importance is that? in case #1, the u.s. supreme court says blacks and whites can marry each other, invalidating a virginia statute, and most socially evolved people said “hooray.” in case #2, the state supreme court says gays can marry each other, and people who claim to be socially evolved say “wait a minute, we need to vote on this.” the only distinction i can see is the level of social evolution of the observer. if there’s any more to it than that, please tell me.

    assistant devil's advocate (15aea1)

  32. Of course there’s more to it than that. It’s called the 14th Amendment, which has everything to do with race (especially black vs. white) and nothing to do with sexual preference. Or at least that’s what the amendment was about, until a cadre of activist judges converted it from its intended historical function to an all-purpose “if I don’t like it, it’s unconstitutional” trump card.

    Xrlq (b71926)

  33. my copy of the 14th amendment says in pertinent part “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” the words “black”, “white” and “race” do not appear in the amendment. are you sure you’re looking at the right amendment? is it remotely possible that you believe some people (straights) should be more equal than other people (gays) in the classic animal farm sense?

    assistant devil's advocate (15aea1)

  34. ADA, yes we all know that the 14th Amendment was adopted to protect the gays that the Union troops defeated the Confederacy to free from their servitude on Southern fashion and hair styling plantations.

    SPQR (26be8b)

  35. at the time the 14th amendment was enacted, interracial marriage was the furthest thing from the minds of the people who enacted it. “equal protection” was interpreted in the marriage context as whites are free to marry whites, and blacks are free to marry blacks. it was more than 100 years after that before the u.s. supreme court’s “sleight of hand” interpreted it to mean that whites are free to marry blacks. it only took another 40 years before state courts expanded their interpretation even further.

    need i remind you that the recent california case was based solely on the state constitution, not the 14th amendment? the texts are similar, but the supreme court of a state is the final arbiter of what the state constitution means.

    assistant devil's advocate (15aea1)

  36. ADA, remind yourself, you introduced the 14th Amendment issue when you introduced Loving v. Virginia.

    SPQR (26be8b)

  37. only because patterico introduced the concept of “judicial sleight of hand”. i’m having trouble distinguishing good “sleight of hand” from bad “sleight of hand”, and the only determining factor i can see is that good “sleight of hand” is that which results in an outcome that i support. as it happens, i support both interracial and homosexual marriage. if adam the burly, hirsute software developer and steve, the little accountant with the toothbrush ‘stache want to get married, they have my sincere best wishes. that’s the kind of liberty-oriented, equal rights for all citizen that looks back at me in the mirror when i’m shaving.

    i see what you need here, spqr, xrlq and all other less socially evolved four letter combinations: cover. it’s the fearful timor i referenced on an earlier thread. you don’t want to be the first conservative on your block to support gay marriage because your neighbors will think “oh, he’s one of those (insert limp-wrist gesture here).” fellas, i’m here to help. let me draw all the stigma to myself, sacrificing my reputation for yours in an almost christlike manner, when i say that marriage between two people of the same sex is no worse than marriage between two people of the opposite sex.

    assistant devil's advocate (15aea1)

  38. Levitcus @ 30:

    Yes, you’ve got it pretty much correct.

    J. Kennedy in Lawrence was very clear that the majority was deciding the case on 14th Amendment Due Process grounds, and not on Equal Protection grounds.

    State laws attacked on DP grounds are reviewed under the standard of either “strict scrutiny,” “intermediate scrutiny” or “rational basis”, depending on the nature of the “right” the law is said to be infringing upon.

    Strict scrutiny is applied to “fundamental rights”, and the state must show a “compelling or overriding interest”.

    Intermediate scrutiny is applied when the law differentiates on the basis of gender, and the law will be upheld if the government can show its “substantially related to an important government purpose.”

    Rational basis is used whenever the first two are not appropriate, i.e., in all other cases. Under this test the law will be upheld if it is “rationally related to a legitimate government interest” and is not “arbitrary or irrational”.

    A very interesting curiosity does exists in Lawrence with respect to the standard of review. As noted, Kennedy never specifies which one the majority is applying — probably because they did not want to equate “homosexual conduct” with being a “fundamental right”, nor did they want to explicitly try to rationalize invalidating the statute on a “rational basis” standard.

    But Scalia’s dissent points out that the language used by the majority is, in fact, the language of a rational basis level of scrutiny. Here is the language Kennedy used:

    “The Texas statute furthers no legitimate
    state interest which can justify its intrusion into the personal and private life of the individual.”

    Here is Scalia calling out the majority on this point:

    “Most of the rest of today’s opinion has no relevance to its actual holding–that the Texas statute “furthers no legitimate state interest which can justify” its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgia’s anti-sodomy statute under the rational-basis test). Though there is discussion of “fundamental proposition[s],” ante, at 4, and “fundamental decisions,” ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: “[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” 478 U.S., at 191. Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”–which it undoubtedly is–and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3.

    Normally, a footnote in the majority opinion would respond to a taunt such as this from a dissenter. But the majority decision is silent.

    From that I think it is rational — taking into consideration the level of review given the same question in Bowers — that rational basis was the standard of review employed by the Supreme Court, and the 9th Circuit will likely be overturned.

    WLS (68fd1f)

  39. at the time the 14th amendment was enacted, interracial marriage was the furthest thing from the minds of the people who enacted it.

    They probably weren’t giving all that much though to marriage per se, I’ll grant you that. However, the point of the amendments was to make normal citizens out of the formerly enslaved Negros (and, for that matter, the free ones who had previously “enjoyed” second-class citizenship).

    “equal protection” was interpreted in the marriage context as whites are free to marry whites, and blacks are free to marry blacks.

    Indeed it was, but all that proves is that the Plessy court was every bit as activist as the Warren court, only with a different orientation. The same can be (and often is) said of Dred Scott (in which the SC privileged slave states over free ones, at a time when the written constitution favored neither) and The Slaughterhouse Cases (in which the SC did to the privileges or immunities clause what the Plessy court did to equal protection).

    it was more than 100 years after that before the u.s. supreme court’s “sleight of hand” interpreted it to mean that whites are free to marry blacks.

    No “sleight of hand” needed. There’s nothing “activist” about finally getting around to enforcing a constitutional provision previous courts have wrongly ignored. Unless, of course, you define “judicial activism” as overturning precedent per se, which I don’t. Undoing an activist precedent is the polar opposite of activism in my book.

    it only took another 40 years before state courts expanded their interpretation even further.

    Right, the difference being that in this case the courts were expanding their “interpretation” of a law to mean what they damned well knew the drafters did not intend, whether that’s Amendment 14 to the U.S. Constitution or Article 1, Section 7(a) of the California one.

    need i remind you that the recent california case was based solely on the state constitution, not the 14th amendment? the texts are similar, but the supreme court of a state is the final arbiter of what the state constitution means.

    The state supreme court is not the final arbiter of whether I deride them as activist or not; that privilege belongs to me and me alone. The implication that one equal protection clause entails any rights not contemplated by the other is beyond ludicrous. Are you seriously arguing that “No State shall … deny to any person within its jurisdiction the equal protection of the laws” means one thing, while “a person may not be … denied equal protection of the laws” means something completely different? If not, then rather than praising the “courageous” California Supreme Court for peeing in its own sandbox, you should be bashing them for lacking the courage to find the same right in the emanations and penumbras of the federal Constitution.

    Xrlq (b71926)

  40. “The reality is that there are no front lines v. rear echelon any longer. A female friend of mine who spent a year in Iraq as a medic was involved in so much combat, firing her rifle, that she’s been working to get her CIB awarded.”

    Your friend was in Iraq and now is not. I’d say there’s a front and a rear.

    stef (84a199)

  41. XRLQ: why should the California court address the federal constitution at all if (a) the litigants haven’t raised that claim and/or (b) interpreting the California Constitution is sufficient to dispose of the case?

    My understanding is that courts are supposed to make decisions on the narrowest grounds possible. Surely saying that something violates the state Constitution is narrower than saying the same thing violates the federal Constitution; and once you’ve reached one violation, you no longer need the other.

    aphrael (e0cdc9)

  42. OK, so at what point do these judges step over the line into tyranny and treason? If they take power that the constitution doesn’t give them, then they need to be shot. After a suitable, swift trial of course.

    martin (cd5d90)

  43. “It’s called the 14th Amendment, which has everything to do with race (especially black vs. white) and nothing to do with sexual preference. Or at least that’s what the amendment was about, until a cadre of activist judges converted it from its intended historical function to an all-purpose “if I don’t like it, it’s unconstitutional” trump card.”

    It talks about liberty and equal protection. For something that has “everything to do with race” its rather silent on the topic

    stef (89d9ce)

  44. ADA, your attempts to use your Ouiji board to invent a motivation for me still fail. You are flat out wrong in your attempts to sweep me into a group that you can then categorize as bigoted.

    SPQR (26be8b)

  45. Patterico:

    I can’t find your trackback URL anymore; so I’m posting to note that I argued with some of the explicit and implicit conclusions you drew in this post, while agreeing with others, in “Patterico and Gay Soldiers: Strict vs. Rational – Liberty vs. Privilege” on Big Lizards.

    Dafydd

    Dafydd ab Hugh (db2ea4)

  46. XRLQ: why should the California court address the federal constitution at all if (a) the litigants haven’t raised that claim and/or (b) interpreting the California Constitution is sufficient to dispose of the case?

    Because the issues are exactly the same. The substantially identical equal provisions of the two constitutions are not an historical accident; rather, the framers of the CA provision made a deliberate choice to copy the federal one. There is absolutely no basis, either in history or in the California constitution itself, for suggesting that the latter provision was intended to be construed more broadly (or in any way differently) than the federal one upon which it was obviously based. That’s why the CA SC had no qualms about citing federal 14th Amendment cases to justify its ruling.

    My understanding is that courts are supposed to make decisions on the narrowest grounds possible. Surely saying that something violates the state Constitution is narrower than saying the same thing violates the federal Constitution; and once you’ve reached one violation, you no longer need the other.

    By that logic, very few state court decisions would apply the federal constitution at all. Every state has its own equivalent of the First Amendment, most have some version of the Second, etc., so why not routinely dismiss all federal issues unless there is a clear basis for ruling that two will conflict (e.g, if the CA constitution purports to allow something the federal one would prohibit)? It’s an interesting theory, but it’s not how these cases are typically argued or decided. It just happened that way here because the plaintiffs knew that if the case was decided under federal law, and therefore reviewable by federal courts, they would lose.

    Other than that, there is nothing about “a person may not be … denied equal protection of the laws” that is any broader (thereby making a finding of a violation narrower) than “no State shall … deny to any person within its jurisdiction the equal protection of the laws.” If each had its own separate history, and the similarities in their verbiage were a coincidence, there might be some justification for holding that one covers gay marriage while the other does not. But you and I both know that is not the case. The only “state constitution” issue is the political reality that when state courts limit themselves to peeing in their own sandboxes, the federal courts generally leave them alone. [Bush v. Gore is the exception that proves the rule. There you had a clear case of a state supreme court issuing a ruling that no conceivable reading of its own statutes would bear. The US SC basically ignored that fact, ruling on equal protection grounds instead.]

    Xrlq (b71926)

  47. patterico, comment #42 calling for the judges to be shot is inappropriate for any blog, let alone one run by an officer of the court, and you should delete it.

    assistant devil's advocate (7cfc3a)

  48. “There is absolutely no basis, either in history or in the California constitution itself, for suggesting that the latter provision was intended to be construed more broadly (or in any way differently) than the federal one upon which it was obviously based.”

    No basis either way. The federal one makes no mention of race, yet you tell me that it has everything to do with that. There’s no indication that CA divined that the words ‘liberty’ and ‘equal protection’ meant that it had ‘everything to do with race’ like you do.

    stef (4fe3dc)

  49. One thing most people forget is that if DADT disapears, then the services will have no choice but to court martial gays. That means a federal felony conviction, prision time, and a BCD or DD.

    ParatrooperJJ (8a6914)

  50. ada #47…
    Not quite. martin called for them to be punished for their conviction of the act of treason, whether or not that could be sustained. Personally, I prefer a public hanging.

    JJ, @ #48…
    Since the services are treating adultery as a criminal act, why the complete silence from the Left on this aspect of Military Justice?
    Are sexual acts between consenting heterosexual adults bad, but between consenting homosexual adults good?
    Curious minds want to know.

    Another Drew (8018ee)

  51. Hmmm DADT and tell the 9th curcut court their all a bunch of stupid mindless idiots

    krazy kagu (ffbf9a)

  52. Not only is Judge Canby a Carter appointee, Walter Mondale is his brother in law.

    slp (72b757)

  53. #13 Diffus:

    Why does the argument against gays in the military always come down to sharing foxholes, sleeping quarters or sleeping bags?

    Because that’s where “good order and discipline” are affected: in normal, everyday living.

    As Foxfier & Thus Spake Ortner noted previously, having a gay service member or even just someone thought to be gay, can be disruptive. For the most part, service members are NOT fully mature adults: they’re young, and they often act like it. (Which was always the problem for me in introducing women aboard ships: not that they can’t be very effective sailors, but that its difficult enough to keep a gang of young guys focused on a job and adding girls to the mix…anyway).

    In practice, I think DADT works as well as could be expected. Folks who want to serve, who would otherwise be rejected, can. Folks who might have objections don’t have to know, and life goes on.

    And in spite of ParatrooperJJ’s comment:

    One thing most people forget is that if DADT disapears, then the services will have no choice but to court martial gays. That means a federal felony conviction, prision time, and a BCD or DD.

    that just simply isn’t true. Many homosexuals served well and honorably before DADT, so even if it were to go away there isn’t any reason gays couldn’t continue to do so. As a practical matter, the “DA” part of “DADT” isn’t going to go away any time soon.

    EW1(SG) (84e813)

  54. as they are increasingly exposed to gays — and learn, to their surprise, that they’re just people like the rest of us.
    If you like an irrational number of sexual partners, do horrendous unnatural acts in orifaces not designed by our Maker for that sort of barbarism, spread diseases that arguably are your own invention that could threaten all of society for your hubris….yeah just like me.

    Largin Testin (0382e0)


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